On petition for rehearing.
The district judge, in reaching his con-

Mann.

Among the authorities which were before the district court, and upon which it relied, was Cayzer v. Carron Co. L. R. 9 App. Cas. 873, in which it was held that, even assuming that the Clan Sinclair had transgressed the rule, yet such transgression was not the cause of the collision; that ordinary care on the part of the Margaret would have enabled her to avoid the collision, and that she alone was to blame.

A. 424, 33 U. S. App. 543, 75 Fed. 424; The Newburgh, 124 Fed. 954; The Rabboni, 53 Fed. 952; The Parthian, 5 C. C. A. 171, 5|clusions upon the question of contributory U. S. App. 314, 55 Fed. 426; The Mabel negligence, did not rely upon Davies v. Comeaux, 24 Fed. 490; The James M. Thompson, 12 Fed. 189; The Pegasus, 22 Blatchf. 7, 19 Fed. 46; The David Dows, 16 Fed. 160; The Pennsylvania (The Pennsylvania v. Troop) 19 Wall. 136, 22 L. ed. 151, 1 Conkling U. S. Adm. 373; Ladd v. Foster, 31 Fed. 827; The Grace Girdler (Lockwood v. The Grace Girdler) 7 Wall. 203, 19 L. ed. 116; Memphis & St. L. Packet Co. v. H. C. Yaeger Transp. Co. 3 McCrary, 259, 10 Fed. 395; The Monticello, 15 Fed. 474; The Columbia, 27 Fed. 238; The Roman, 12 Fed. 219; Connolly v. Ross, 11 Fed. 342; The Richmond, 12 C. C. A. 1, 26 U. S. App. 183, 63 Fed. 1020; The Anerly, 58 Fed. 794; The Marion, 56 Fed. 271; Fristad v. The Premier, 51 Fed. 766; The John Henry, 3 Ware, 264, Fed. Cas. No. 7,350.

Cayzer v. Carron Co. L. R. 9 App. Cas. 873; The Nereus, 23 Fed. 448; The Pennland, 23 Fed. 551; The Britannia, 34 Fed. 546; The Titan, 44 Fed. 510; The Susquehanna, 35 Fed. 320.

Persons having business on board of a vessel do not commit a negligent act by per

Messrs. William H. Looney and Ben- mitting themselves to be in the bight of a jamin Thompson, for appellee:

The dredge owed libellant the duty of prosecuting its work with reasonable skill, care, and prudence to provide for his safety.

The Calista Hawes, 14 Fed. 493; The City of Naples, 16 C. C. A. 421, 32 U. S. App. 613, 69 Fed. 794; Low v. Grand Trunk R. Co. 72 Me. 313, 24 Am. Rep. 331; Gerrity v. The Kate Cann, 2 Fed. 246.

He had a right to assume that the crew would properly perform their duties, and, if they were going to do anything out of the ordinary course, or subject the bitt to any unusual strain, that they would give him notice.

The Calista Hawes, 14 Fed. 493.

In the common-law courts, contributory negligence which will defeat the plaintiff's right of recovery must be a concurring negligence.

Gilbert v. Eric R. Co. 38 C. C. A. 408, 97 Fed. 747; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 35 L. ed. 270, 11 Sup. Ct. Rep. 653; Turnbull v. New Orleans & C. R. Co. 57 C. C. A. 151, 120 Fed. 783. Where the negligence is concurrent, or both parties are at fault, courts of admiralty will apportion the damages, or give or withhold them, in the exercise of a sound discretion, according to principles of equity and justice, considering all the circumstances of the case.

Olson v. Flavel, 34 Fed. 477; Anderson v. The Ashebrooke, 44 Fed. 124; The Max Morris, 24 Fed. 860, Affirmed in 137 U. S. 1, 34 L. ed. 586, 11 Sup. Ct. Rep. 29; Heil v. Glanding, 42 Pa. 493, 82 Am. Dec. 537; Cayzer v. Carron Co. L. R. 9 App. Cas. 873; The Nereus, 23 Fed. 448; The E. A. Packer, 20 Fed. 327; McCord v. The Tiber, 6 Biss. 409, Fed. Cas. No. 8,715.

line, especially when their duties require them to be there.

The Calista Hawes, 14 Fed. 493.

Putnam, Circuit Judge, delivered the opinion of the court:

This was a libel brought in the district court for the district of Maine against Steam Dredge No. 1, a vessel engaged in dredging, under a contract with the United States, in Cape Porpoise harbor, in the district of Maine, for injuries to William Nelson, on the 4th day of September, 1900. The substance of the allegations of the libel is that at the time of the injury Nelson was employed by the United States, aboard the dredge, as an assistant inspector in regard to improvements then being made at Cape Porpoise harbor; that, as part of his duties, it was necessary for him to observe whether the work was being executed in accordance with the plans and specifications, and, as incidental thereto, to note the shifting of the position of the dredge from time to time; that about 4 o'clock on the afternoon of the day in question, he was sitting on a double bitt for the purpose of observing a change then being made; that the quarter line used in moving the dredge came in over the port quarter, was carried around the forward part of the double bitt on which he was sitting, and then inboard to a steam gypsy; that while the location of the dredge was thus being changed, either by reason of the heavy strain put on the quarter line by the use of the steam gypsy, or by reason of the insecure condition or the insufficiency of the bitt, the bitt suddenly broke off at the deck, thereby causing the line to sweep over the front side of the deck, striking Nelson and throwing him into a scow alongside;

that the injury was caused wholly by the negligence of the crew of the barge in subjecting the quarter line to an improper strain, and by reason of the weak and insecure condition of the bitt; and that it was without negligence on the part of Nelson. We will refer again to such of these allegations as are disputed and also are material. The barge, while at work, was held in position by spuds in the usual way; the outboard end of the quarter line which was used in moving her run out to an anchor, or some other permanent object, and it was kept taut to assist in holding the barge in position. The barge was moved by the use of this and other lines. The inboard end of the quarter line was run over a gypsy head, operated by a steam engine of considerable power. Before putting the gypsy head in gear, it was customary to raise the spuds, so that the dredge could be moved with the assistance of the engine. On this occasion the engine was started before the spuds were raised, with the gypsy head in gear, and the result was that the bitt broke off, as stated in the libel.

the conditions in question; so that the issue cannot be cut down to a mere contention as to the personal negligence of any single member of the crew. The case, in this particular, comes within the well-known presumptions which were applied by us in Burr v. Knickerbocker Steam Towage Co. 65 C. C. A. 554, 132 Fed. 248. Likewise we pass by, as not of substantial importance, all criticisms arising from any suggestion that Nelson, at or about the time of the injury, was not actually engaged in his duties as inspector. Such duties required him to be quite constantly aboard the barge, and to pass from time to time, in his discretion, from one part of her deck to another. Of course, there would be intervals when there would be no occasion for him to be actually engaged in any immediate active duty; but his presence aboard and about such parts of the deck as he might reasonably select, even at those times, was proper, and entitled him to protection. The law does not apply to this so fine a rule as to be impracticable.

Neither can it be said that the mere act of leaning against the bitt, or wholly sitting on it, was one of negligence. There is r evidence in the record that there was any reason, arising either from the condition of this particular vessel, or from the customary course of events with reference to happenings in connection with bitts and lines, which would reasonably create any appre

The answer alleges that the claimant of the dredge is ignorant for what purpose Nelson was sitting on the bitt. It denies it was necessary for him to sit there in the discharge of his duties. It denies that the injury was caused by the negligence of the crew in subjecting the quarter line to an improper strain, or by the weak and inse-hension that, in case of an unusual strain, cure condition of the bitt. It alleges that Nelson was, at the crucial time, in a sitting position on the bitt, facing forward, with his feet and legs on the forward side of the bitt, and within the bight of the quarter line. Also, that the breaking of the bitt and the consequent injury of the libellant were not caused by the negligence of any officer or any of the crew of the dredge, or of the owners thereof, but wholly by the negligence of the libellant in assuming an unnecessary position on the dredge, and that he, as a man of long experience as a sailor and inspector, knew the dangers.

It is not questioned that the bitt gave away, and that the cause of its giving away was the starting of the engine while the gypsy was in gear, and before the spuds were raised. Much of the evidence and many of the contentions of the parties relate to one Christiansen, one of the crew of the dredge, whose duty it was to take charge of the raising the spuds and to superintend the lines. The dredge claims that he was ignorant that the gypsy was in gear when the signal for moving was given, and also ignorant of the position of Nelson on the bitt. But the work was in open daylight, under circumstances where there was no difficulty in perceiving and understanding all

this bitt would give way instead of the line. It is common knowledge that it is customary to lean against or sit on the windlass or the bitt or the rail of a vessel; and yet each, especially the rail, under some circumstances, is subject to its own peculiar contingencies. In fact, it is difficult to say what part of a vessel is not at times so subjected; and yet it remains to be shown that a passenger, or other person rightfully aboard a vessel, performing duties thereon, is not entitled to be protected in any of these particular positions. For one, however, to take a position in the bight of a line, subject to a strain, is another matter: and to do this may well subject him to criticism as guilty of negligence if injury results to him.

The facts, as understood by the learned judge of the district court, are so fully detailed in his opinion that we need not touch on them further, except to a very limited extent. We have stated those parts of the case where there are questions of mixed law and fact, or where the topics are so far within the common knowledge that we could apprehend them clearly. As to the substantial questions of mere fact,—that is, as to negli gence on the part of the libellant, so far as that is affected by the claim that he was

The district court does not find such to be the animal. The case, however, to which we the fact, nor are we impressed that it was. call especial attention, is the one we have The refusal to apportion the damages, and already referred to,-Tuff v. Warman,—dethe assessment of the whole on the dredge, cided in 1858, where a barge was run down are sought to be justified on the strength of by a steamer. It was shown that the barge the line of cases represented by Davies v. was negligent in not having a lookout. NevMann, 10 Mees. & W. 546, decided in 1842. ertheless, the steamer saw the barge, but As we have said, we must adopt the findings failed to port her helm, as she should have of the district court on questions of mere done. It being a common-law suit, the fact. They show that it was the duty of the steamer was charged with all damages, on dredge, in providing for the safety of all the ground that she continued in a course concerned, to take care that when the steam which would inflict an injury, and was was to be given the engine, the spuds therefore liable, although the plaintiff had should be raised before the gypsy was put no lookout. We will have occasion to refer in gear, and that the managers of the dredge to this case again in a pointed manner. committed this duty to Christiansen. The Davies v. Mann, as interpreted and applied findings, also show that if he had properly in England, is undoubtedly the law of Engattended to that duty, he would have land, as was declared in the House of Lords. thrown the gypsy out of gear, and would Radley v. London & N. W. R. Co. L. R. 1 have seen to it that it was kept out of gear App. Cas. 754, 759. The difficulty, however, until the spuds were raised. While the find- of applying Davies v. Mann, even in Engings were that Christiansen knew that Nel- land at that late day (1876), is apparent son was in a negligent position, it does not from the fact that there, under the direc appear that he knew that the gypsy was in tions of the trial judge, a verdict was algear, or how it happened to be in gear. The lowed to be taken for the defendant, which, presumption is that it was through Chris- on appeal to the divisional court, was set tiansen's fault that it was in gear, but there | aside. The decision of the divisional court is no presumption that he had in mind, at was reversed in the exchequer chamber by the time the whistle sounded, that such was such eminent justices as Blackburn, Mellor, the fact. In other words whatever negli- Lush, Brett, afterwards Lord Esher, and gence Christiansen was charged with, he Archibald. An appeal was then taken to the was not charged with having allowed the en- House of Lords, which reversed the exgine to be started with a present apprecia- chequer chamber, and restored the judgtion of both facts,-that Nelson was sitting ment of the divisional court. Lord Blackon the bitt and that the gypsy was in gear. burn, who, pending the appeal, had taken a If he had had both facts present in his mind, seat in the House of Lords, overruled himhis conduct in allowing the whistle to be self, concurring with the other lords. In blown while the gypsy was in gear might that case Lord Penzance, who delivered the have been so reckless or perverse that it opinion, in which the other lords briefly conmight well be said to have been the sole curred, put Davies v. Mann in two different proximate cause of the injury which re- forms. One was (page 759) to the effect sulted. But, for various reasons, Davies v. that if the defendant, by the exercise of orMann cannot be held to apply. dinary care, might have avoided the mischief, the plaintiff's negligence would not ex cuse him; and the other (page 760) described the plaintiff's negligence as "a previous negligence." Therefore it was not a concurring, nor necessarily a contributing, negligence in any sense of either of those expressions.

Davies v. Mann must be taken in connection with Butterfield v. Forrester, 11 East, 60, decided in 1809, and Tuff v. Warman, 5 C. B. N. S. 573, decided in 1858. Of the three, the last-named case must be regarded as the leading one according to Pollock, Torts, 6th ed. 1901, 448, where it is said that those earlier than Tuff v. Warman are now material only as illustrations. In Butterfield v. Forrester, Lord Ellenborough said that the fact that a person was on the wrong side of the street would not authorize another purposely to ride up against him. This relates to mere perverseness. He also said some other things, more in line with Davies v. Mann. In Davies v. Mann, a donkey left unlawfully in the highway was run down by the defendant. driving a pair of horses. Lord Abinger said, in effect, that the plaintiff could recover, as the defendant might, by proper care, have avoided injuring

In view of these varying applications, the observation of Pollock on Torts, at page 449, to the effect that Davies v. Mann has been much discussed in America, though not always wisely so, seems hardly suitable. This is very patent in the light of Sir Frederick Pollock's further observations as to Davies v. Mann. In connection with the discussion of this case, at page 451, he quotes with approval one whom he styles a "learned writer," although anonymous, who undertook to restate the rule of Davies v. Mann, as follows: "He who last has an opportunity of avoiding the accident, notwithstanding the

negligence of the other is solely responsible." | lision with

a schooner at anchor. The

The same "learned writer" also said that, schooner was at fault. Nevertheless, the "if the plaintiff could, by the exercise of opinion observes at page 134, 98 Fed., page ordinary care, have avoided the accident, he 671, 38 C. C. A., that, if the Providence had cannot recover." He sums up the result of used proper precautions, the collision might both rules to be that the law looks to the have been avoided, or at least the conseproximate cause, and "holds that person lia-quences would not have been serious. Again ble who was, in the main, the cause of the the damages were divided. injury." As practically applied in England,

In The America (The America v. Camden

it may, after all, be well doubted whether & A. R. Transp. Co.) 92 U. S. 432, 436, 23 this whole line of cases means anything | L. ed. 724, 727, one vessel was a tug and more than to illustrate and emphasize the the other a ferryboat. The ferryboat struck distinction between causa causans, which the tug on the port bow. The court states the fundamental rules of the law regard, and causa sine qua non, which they do not regard.

that the proofs were clear that each vessel was seen by the other in ample season to have prevented the collision, and yet, not only the ferryboat which struck the tug, but the tug, also, was held to half the damages. The New York, 175 U. S. 187, 209, 44 L. ed. 126, 135, 20 Sup. Ct. Rep. 67, is another very marked case. One steamer was in fault for not stopping when the other steamer failed to answer her signals. Both steamers saw each other, and both were held guilty, and damages divided. One of the most striking of all is Atlee v. Northwestern Packet Co. 21 Wall. 389, 392, 395, 397, 398, 22 L. ed. 619, 620, 621, 622, in which the circumstances were even more extreme than any which could be deduced from Davies v. Mann because in Davies v. Mann the object unlawfully left in the public highway was a donkey, only temporarily there, the presence of which might or might not be presumed to be known to travelers. In Atlee v. Northwestern Packet Co. the object unlawfully in the public highway—that is, in the riverwas a pier of a permanent character, existing for so long a time that the court found that a skilful pilot was bound to know of it; and yet Atlee, who constructed and maintained the pier, as well as the steamer col

As indicated by Pollock, Davies v. Mann is still the subject of discussion in America, except so far as it recognizes the rule of a subsequent, disconnected negligence, or the rule of causa causans, or that of perverseness or persistency, spoken of by Lord Ellenborough. It is in this light that the Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558, 559, 35 L. ed. 270, 272, 273, 11 Sup. Ct. Rep. 653, is to the implied effect that the negligence of the plaintiff is a defense unless the defendant had knowledge of the position. However, as the appeal at bar is in admiralty, it is not necessary for us to follow the intricacies of Davies v. Mann and its history. We do not know that Davies v. Mann, or any decisions of its kin, was ever cited in a maritime court. Attempts have been made in England to apply this class of cases in admiralty, with contradictory and unsatisfactory results. Marsden's Collisions at Sea, 5th ed. pp. 16-22. Certain it is that there are decisions of the highest authority in admiralty directly impugning Tuff v. Warman, and dividing the damages under the same substantial circumstances as those of that case, and disregarding any ap-liding with it, were both held liable, and the plication of Davies v. Mann.

damages were apportioned equally between In the circuit court of appeals in the sec- them. A more positive case is Cushing v. ond circuit we find The James D. Leary, ap- The John Fraser (The James Gray v. The pearing in the district court in 110 Fed. John Fraser) 21 How. 184, 191, 16 L. ed. 685, and affirmed in 51 C. C. A. 620, 113 106, 109, where the collision was with a vesFed. 1019, on the opinion of the district sel anchored in an improper place, without court. Both vessels involved were steamers, any light; but the other vessel was held in -The James D. Leary and The Evelyn. The fault for not sighting her, and damages were Evelyn was found at fault for coming to an- equally divided. In every one of these cases chor east of the proper anchorage ground, as the circumstances were known to the party marked by buoys, but her anchor light was who was guilty of the final negligent act. A visible to the Leary from one to two miles. multitude of other admiralty decisions to The damages were divided. There is no mis- the same effect can be cited. Indeed, some of taking that this decision absolutely disre them go so far as to make it clear that the garded any rule found in Tuff v. Warman or law of these tribunals is not strict with refin Davies v. Mann, although all the substan-erence even to subsequent, and somewhat intial circumstances were alike. The same dependent, disconnected negligences, as is must be said about The Providence, decided the common law. In view of these proposiby this court, and reported in 38 C. C. A. 670, 98 Fed. 133, where a large Sound steamer coming into Fall river, was in col

tions and decisions, we are not justified in applying in an admiralty case any peculiar rule which can be deduced, or ever has been